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June 20, 2012

City Attorney Contact: (510) 238-3148
On line at www.oaklandcityattorney.org

Oakland City Attorney joins legal battle to preserve local medical cannabis laws

OAKLAND, CA – Oakland has joined a pivotal legal battle to defend the right of local governments to authorize and regulate medical cannabis dispensaries.

On June 15, City Attorney Barbara Parker, on behalf of the City of Oakland, joined an amicus brief with other California cities and counties asking the state Supreme Court to reverse the lower court’s decision in Pack v. City of Long Beach, which threatens to invalidate Oakland’s groundbreaking, model medical cannabis dispensary program. The brief argues that local governments have a clear legal right to regulate and permit medical cannabis dispensaries, and that those regulations are not preempted by federal drug laws.

In 2004, Oakland adopted an ordinance permitting medical cannabis dispensaries, which reduced the number of dispensaries from approximately 20 to four. The ordinance allows the City to limit the number of dispensaries, require operator background checks, conduct financial and operational audits and engage in other necessary oversight to assure that dispensaries provide safe and affordable medical cannabis in compliance with City laws and regulations that are designed to protect public safety and prevent nuisance or criminal enterprises. In 2011, the City amended this ordinance and increased the number of permitted dispensaries to eight.

“If the state Supreme Court allows the lower court’s ruling in Pack v. City of Long Beach to stand, local governments may lose the ability to regulate dispensaries to assure that patients have access to safe and affordable medical cannabis. This was the promise of California’s Compassionate Use Act, which a majority of Californians passed in 1996,” City Attorney Parker said. “What’s at stake in this case is much more than just Long Beach’s ordinance. If the court prohibits local medical cannabis regulations, it will effectively cut the heart out of the 1996 Compassionate Use Act.”

Parker also thanked Tehama County Counsel Arthur Wylene for drafting the brief, as well as Arcata City Attorney Nancy Diamond and other signatories.

"The voters of California overwhelmingly support the safe, legal access to medical cannabis,” City Councilmember Rebecca Kaplan said. “Local oversight and control of permitted facilities ensures that this voter mandate is accomplished responsibly. Strong local regulation that provides permits – and oversight – for medical cannabis facilities is the best way to protect patients and guarantee public safety.”

In 2010, the City of Long Beach adopted an ordinance similar to Oakland’s to comprehensively regulate medical marijuana collectives within the city. Two applicants who were denied permits in Long Beach and ordered to shut down store front dispensaries sued, asserting that the Long Beach ordinance was illegal and preempted by federal law. In October 2011, the Second Appellate District Court of Appeal ruled for the plaintiffs and struck down Long Beach’s ordinance, holding it was preempted by federal Controlled Substances Act, which does not permit the distribution or sale of any cannabis. The City of Long Beach has appealed the Pack decision to the California Supreme Court and it has been certified for review (Supreme Court case No. S197169).